Citation Nr: 1441782
Decision Date: 09/18/14 Archive Date: 09/30/14
DOCKET NO. 13-31 981 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an effective date earlier than December 22, 2009, for the grant of service connection for hepatitis C with cirrhosis of the liver.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P. Olson, Counsel
INTRODUCTION
The Veteran had active military service from September 1975 to March 1981 and from January 1982 to February 1997.
This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
In June 2014, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record.
The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS).
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDING OF FACT
There is no evidence prior to December 22, 2009, of a formal or informal claim for service connection for any liver disorder to include hepatitis C and cirrhosis of the liver.
CONCLUSION OF LAW
The criteria for an effective date earlier than December 22, 2009, for the award of service connection for hepatitis C with cirrhosis of the liver have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).
As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c).
The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for hepatitis C with cirrhosis of the liver. Under governing law, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2).
The Veteran's original claim for compensation benefits was received by VA on September 17, 2009. At that time he specifically denied ever filing a prior claim with VA. He listed numerous disabilities including skin cancer, lack of equilibrium, reduced visual acuity, rectal bleeding, fatigue, and left knee pain. A liver disability such as hepatitis C or cirrhosis was not claimed. The Veteran's claim for "liver problem" was not received by VA until December 22, 2009.
Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155.
In this case, prior to December 22, 2009, there was no claim, formal or informal, for a liver disorder, to include hepatitis C or cirrhosis, received by VA.
The legal criteria pertaining to the assignment of an effective date for service connection are controlling. As a claim of entitlement to service connection for hepatitis C was not submitted to VA prior to December 22, 2009, entitlement to an earlier effective date for the grant of service connection for hepatitis C with cirrhosis of the liver cannot be assigned. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The correct effective date for the grant of service connection for hepatitis C with cirrhosis of the liver is December 22, 2009.
The appeal is denied.
ORDER
Entitlement to an effective date earlier than December 22, 2009, for the grant of service connection for hepatitis C with cirrhosis of the liver is denied.
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DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs